United States District Court, W.D. Virginia, Lynchburg Division
Jeffery L. Buckner, Plaintiff,
Lynchburg Redevelopment and Housing Authority, Defendant.
K. MOON, UNITED STATES DISTRICT JUDGE
case is before the Court on Plaintiff's motion for wavier
of costs. (Dkt. 40). The motion arises out of the aftermath
of Plaintiff's suit against Defendant alleging a
violation of the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq. (“ADEA”).
See Buckner v. Lynchburg Redevelopment & Hous.
Auth., No. 6:16-CV-00070, 2017 WL 2601898 (W.D. Va. June
15, 2017). Pursuant to 28 U.S.C. § 636(b)(1)(B), the
Court referred this matter to Judge Robert S. Ballou for a
recommended disposition. Judge Ballou's Report and
Recommendation, (dkt. 43, hereinafter “R&R”),
advises this Court to deny Plaintiff's motion for waiver
of costs and award Defendant costs in the amount of $1,
714.68. Plaintiff filed timely objections to the R&R.
(Dkt. 44, hereinafter “Objections”). Because I
find Plaintiff's Objections lack merit, I will adopt the
R&R in full, deny Plaintiff's motion, and award costs
Factual and Procedural Background
Defendant moved for, and was granted, summary judgment based
upon its presentation of “evidence supporting its
legitimate overqualification rationale for not hiring
Plaintiff . . . .” Buckner, 2017 WL 2601898 at
*1. While recognizing that Plaintiff had made out a prima
facie case under the McDonnell Douglas
framework, this Court found Defendant stated a legitimate,
nondiscriminatory reason for not hiring Plaintiff:
overqualification. Id. at *4. After finding that
sufficient objective reasons supported overqualification as a
negative trait, the burden then shifted back to Plaintiff to
demonstrate the reason was merely a pretext. Id. at
*6. In granting summary judgment, this Court found Plaintiff
failed to demonstrate that Defendant's overqualification
reason was a pretext, and could not satisfy the high
“but-for” causation standard required for his
claim. Id. Plaintiff then filed the instant motion
for wavier of costs.
Rule of Civil Procedure 54(d)(1) provides, “[u]nless a
federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party.” Fed.R.Civ.P.
54(d)(1). “Indeed, the rule gives rise to a presumption
in favor of an award of costs to the prevailing party.”
Teague v. Bakker, 35 F.3d 978, 996 (4th Cir. 1994).
district court finds that a departure from the general rule
is warranted, it must articulate “some good reason for
doing so.” Id. (quoting Oak Hall Cap and
Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d
291, 296 (4th Cir. 1990)). The Fourth Circuit recognizes two
hallmark “good reasons”: punishment and poverty.
Cherry v. Champion Int'l Corp., 186 F.3d 442,
446 (4th Cir. 1999) (“[O]nly misconduct by the
prevailing party worthy of a penalty . . . or the losing
party's inability to pay will suffice to justify denying
costs.” (quoting Congregation of The Passion, Holy
Cross Province v. Touche, Ross & Co., 854 F.2d 219,
222 (7th Cir. 1988))). The Fourth Circuit has recognized
other “good reasons” including: excessiveness of
costs; the limited value of the prevailing party's
victory; or the closeness and difficulty of the issues
decided. Cherry, 186 F.3d at 446. While bringing
suit in good faith is “a virtual prerequisite to a
denial of costs in favor of a prevailing party, ” good
faith “alone is insufficient . . . .”
Teague, 35 F.3d at 996.
reviewing a Report and Recommendation, a district court
“is only required to review de novo those
portions of the report to which specific objections have been
made.” Farmer v. McBride, 177 F. App'x
327, 331 (4th Cir. 2006). A district court judge “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1). See also Fed. R. Civ. P.
that the Court should waive Plaintiff's payment of
Defendant's costs, Plaintiff advances two objections to
Judge Ballou's R&R: (1) the case was “close and
difficult”; and (2) it is more difficult for Plaintiff
to pay the costs than for Defendant to bear its own costs.
The Court finds Plaintiff's Objections without merit, and
both will be overruled.
The Case Was Not a “Close and Difficult”
Plaintiff objects to Judge Ballou's R&R contending
that since “the case in question was a close and
difficult one . . ., ” the Court should deny Defendant
the costs it would be entitled to as the prevailing party.
(Objections at 1-2 (citing Teague, 35 F.3d at 978).
Specifically, Plaintiff posits that the issue of
“whether Defendant's defense of Plaintiff's
‘overqualification' was a genuine reason for the
[Defendant's] refusal to hire him, or was merely
pretextual, ” was a “close and difficult”
one. (Objections at 2).
categorized as “close and difficult” appear
“reserved for those matters that involve extremely
complex legal principles and that are resolved in such a
manner that it would be inequitable for the putative victor
to be able to shift his costs to the putative loser.”
See Selman v. Am. Sports Underwriters, No. CIV. A.
84-0099-C, 1990 WL 265980, at *2 (W.D. Va. July 31, 1990)
(holding that no waiver should be given despite the
“hard fought” nature of the case and, unlike
patent litigation, the breach of contract action did not pose
sufficiently complex legal issues). See also Ellis v.
Grant Thornton LLP, 434 F. App'x 232, 235 (4th Cir.
2011) (finding it was not an abuse of discretion for the
district court to deny costs in the amount of $61, 957.45 to
the prevailing party when multiple “issues in
the case were close and difficult” and the “case
was hotly contested at trial and in previous appeal.”);
Teague, 35 F.3d at 981-85 (finding defendant's
liability a “close and difficult” question in a
suit involving “numerous defendants [and] alleging
common law fraud, federal and state securities fraud, state
timeshare fraud, federal and state RICO violations, and
negligence . . . .”); Lucas v. Shively, No.
7:13CV00055, 2015 WL 2092668, at *2 (W.D. Va. May 5, 2015)
(finding the “significant factual development, and the
legal issues touch[ing] ¶ 42 U.S.C. § 1983
liability, qualified immunity,  probable cause analysis,
” and fingerprint analysis methodology were sufficient
to constitute a “close and difficult” case).
lone age discrimination claim does not rise to the level of
being so “close and difficult” as to warrant a
waiver of costs. The legal analysis, while involved in its
burden shifting, is not overly complex (unlike a securities
fraud or patent case). The case did not go to trial and was
not appealed. Moreover, Plaintiff mischaracterizes his case
as “turn[ing] on whether Defendant's defense of
Plaintiff's ‘overqualification' was a genuine
reason for the [Defendant's] refusal to hire him, or was
merely pretextual.” (Objections at 2). Although an issue in
the case, I concluded that even if Plaintiff was able to
demonstrate it was a pretext, he did not provide
“sufficient evidence that [Plaintiff's] age was the
‘but-for' cause of the adverse action . . .
.” Buckner, 2017 WL 2601898, at *6. Notably, I
concluded that “[e]ven considering the evidence in the
light most favorable to Plaintiff, no reasonable trier ...